[Federal Register Volume 59, Number 68 (Friday, April 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8375]


[[Page Unknown]]

[Federal Register: April 8, 1994]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Parts 26 and 162

[CGD 93-072]
RIN 2115-AE66

 

Vessel Bridge-to-Bridge Radiotelephone Regulations: Inland 
Waterways Navigation Regulations

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend the Vessel Bridge-to-Bridge 
Radiotelephone Regulations to correct an inconsistency between the 
statutory and regulatory language; and to amend the Inland Waterways 
Navigation Regulations to remove regulatory language that contradicts 
the Inland Navigation Rules.

DATES: Comments must be received on or before June 7, 1994.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine 
Safety Council (G-LRA/3406) (CGD 93-072), U.S. Coast Guard 
Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may 
be delivered to Room 3406 at the above address between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 267-1477 for information concerning the submission of 
comments.
    The Executive Secretary maintains the public docket for this 
rulemaking. Comments will become part of this docket and will be 
available for inspection or copying at room 3406, U.S. Coast Guard 
Headquarters.

FOR FURTHER INFORMATION CONTACT:Mr. Jonathan Epstein, Navigation Rules 
and Information Branch, Office of Navigation Safety and Waterway 
Services, (202) 267-0352 or (202) 267-0357.

SUPPLEMENTARY INFORMATION: 

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their name and address, 
identify this rulemaking (CGD 93-072) and the specific section of this 
proposal to which each comment applies, and give a reason for each 
comment. The Coast Guard requests that all comments and attachments be 
submitted in an unbound format suitable for copying and electronic 
filing. If not practical, a second copy of any bound materials is 
requested. Persons wanting acknowledgment of receipt of comments should 
enclose a stamped, self-addressed postcard or envelope.
    The Coast Guard will consider all comments received during the 
comment period. It may change this proposal in view of the comments.
    The Coast Guard plans no public hearing. Persons may request a 
public hearing by writing to the Marine Safety Council at the address 
under ADDRESSES. The request should include reasons why a hearing would 
be beneficial.
    If it is determined that the opportunity for oral presentations 
will aid this rulemaking, the Coast Guard will hold a public hearing at 
a time and place announced by a later notice in the Federal Register.

Drafting Information

    The principal persons involved in drafting this document are 
Jonathan Epstein, Project Manager, Office of Navigation Safety and 
Waterway Services, and LT Ralph L. Hetzel, Project Counsel, Office of 
Chief Counsel.

Background and Purposes

    This proposed rulemaking will correct two conflicts between 
statutory law and existing navigation safety regulations. Although both 
corrections directly affect navigation safety, the two subject matters 
are distinct. Therefore, this proposal will address the proposed 
changes to the Vessel Bridge-to-Bridge Radiotelephone Regulations (33 
CFR 26) in section one and the proposed changes to the Inland Waterways 
Navigation Regulations (33 CFR 162) in section two.

1. Vessel Bridge-to-Bridge Radiotelephone Regulations

    The Vessel Bridge-to-Bridge Radiotelephone Regulations, 
specifically 33 CFR 26.05, differs in wording and meaning from the 
corresponding statutory authority, the Vessel Bridge-to-Bridge 
Radiotelephone Act, 1972, (33 U.S.C. 1204). The particular statutory 
language is important because it determines who may maintain the watch 
on the designated bridge-to-bridge calling channel (VHF-FM Channel 13 
in U.S. territorial waters, except in the approaches to the lower 
Mississippi River where VHF-FM Channel 67 is the designated channel). 
Section 26.05 provides that, ``The radiotelephone required by this act 
is for the exclusive use of the master or person in charge of the 
vessel, or the person designated by the master or person in charge of 
the vessel [emphasis added], or the person designated by the master or 
person in charge to pilot or direct the movement of the vessel, who 
shall maintain a listening watch on the designated frequency.'' This 
highlighted clause does not appear in the statutory language, but was 
added in the regulatory language. This additional clause implies that 
any person designated by the master or licensed officer may maintain 
the watch on the designated channel. This differs from the statutory 
construction which requries the master or person piloting the vessel to 
maintain the radio listening watch and communicate with other vessels 
on the prescribed channel.
    This discrepancy dates back to the enactment of the Vessel Bridge-
to-Bridge Radiotelephone Act in 1972. The implementing final rule, (37 
FR 12719, June 28, 1972) contained the additional phrase without 
explanation even though it is directly contrary to the intent of 
Congress. The history of the Vessel Bridge-to-Bridge Act (Pub. L. 92-
63) addresses this, pointing out that the radiotelephone equipment 
should be operated by the master, mate, or person in charge of the 
vessel in the wheelhouse. It specifically notes that if another person 
were added to the crew to monitor the radio, that would defeat the 
purpose of the legislation.
Discussion
    The Coast Guard proposes to remove the additional language in 
Sec. 26.05 to make the language and meaning of the regulation 
consistent with the Vessel Bridge-to-Bridge Radiotelephone Act.
    The history and purpose of the Vessel Bridge-to-Bridge 
Radiotelephone Act show that the intent was to provide one radio 
frequency where the person ``conning'' a vessel could communicate 
directly with the person ``conning'' an approaching vessel about 
proposed maneuvers to avoid collision. The current regulation implies 
that the ``watch'' on the designated frequency can be maintained by 
some other person that the officer or pilot controlling the movement of 
the vessel. The danger of having a person other than the person or 
persons charged with maneuvering the ship maintain the watch was 
illustrated in a recent near collision:
    A small ship (vessel A) and a large tanker (tanker B) were both 
approaching the channel north of Alcatraz Island in San Francisco Bay 
from near opposite directions and both headed for sea. The vessels had 
agreed via bridge-to-bridge radio that vessel A would take the lead 
into the channel, however vessel A was forced to slow to avoid a 
crossing ferry. Due to this delay, the tanker B's pilot proposed that 
this vessel take the lead into the channel. An officer on the bridge of 
vessel A assigned as ``radio watch'', assented to this new passage 
arrangement. However, this modification of the agreement was never 
passed to vessel A's captain or conning officer, who increased speed to 
attempt to pass ahead of tanker B. The result was a near collision 
averted only by radical maneuver by vessel A. Either vessel A's captain 
or conning officer should have been monitoring VHF-FM Channel 13. If 
temporarily on the bridge wing, communications directed to the vessel 
should have been relayed by the ``radio watch''.
    Since removal of this language serves only to bring the regulatory 
language in Sec. 26.05 into conformity with the statutory language, 
there will be no change in the meaning or effect of the statutory 
language. The impact on the mariner should be negligible because the 
publication ``Navigation Rules: International-Inland,'' which includes 
the text of the Vessel Bridge-to-Bridge Radiotelephone Regulations, 
contains the statutory rather than the regulatory language. In 
addition, the Federal Communications Commission regulations originally 
mirrored the statutory language and continue to do so in 47 CFR 80.309.
    The following further clarifies the Coast Guard's interpretation of 
the bridge-to-bridge radiotelephone watch requirements. The Vessel 
Bridge-to-Bridge Radiotelephone Act is clear that the master or person 
piloting the vessel is required to maintain the listening watch and to 
make all communications on the designated channel. This means that the 
person in charge of the vessel, regardless of designation as commanding 
officer, master, or person in charge; and in addition, the person(s) 
conning the vessel, whether an embarked pilot, licensed mate, or the 
deck watch officer who is ``conning'' the vessel or responsible for the 
ship's movement should conduct all passing arrangements on the 
prescribed channel. The practice of using another person to ``relay'' 
messages should be discouraged as it is inconsistent with the intent of 
the statute. However, if circumstances required, the use of a person 
solely to relay or amplify radio communications would not be a 
violation per se.
    It is also incumbent on the master or person piloting the vessel to 
maintain a listening watch on the designated channel. The listening 
watch was imposed to ensure that the person maneuvering the vessel 
hears proposed passing signals or other safety related communications 
from other vessels. While the watch should be continuous, FCC 
regulations (47 CFR 80.309) specifically allow that the person 
maintaining the watch may perform other duties. This is consistent with 
the Coast Guard view that the VHF radio and the bridge-to-bridge 
calling channel are tools to aid the person piloting the vessel in 
collision avoidance. It is not unusual for Coast Guard and Naval 
vessels to designate an officer or crewman to the ``radio watch'' on 
the bridge. While this person may provide an additional factor of 
safety on a crowded, noisy bridge, this does not relieve the master or 
person piloting the vessel of the duty to maintain the listening watch. 
Under no circumstances should the bridge-to-bridge channel be patched 
to headphones for the designated ``radio-watch''. The master or person 
conning the vessel needs to be aware of communications directed at 
their vessel as well as other communications, such as vessel movements 
elsewhere on a waterway that may pose a future hazard to the vessel. 
Thus any filtering by a designated ``radio watch'' person may defeat 
the purpose of the statute.

2. Inland Waterways Navigation Regulations

    Title 33 CFR 162 contains the Inland Waterways Navigation 
Regulations for 43 different waterways in the United States ranging in 
size and significance from Lake Tahoe to the entire Atlantic seacoast 
south of the Chesapeake Bay.
    The regulations in 33 CFR 162.65 were promulgated by the Army Corps 
of Engineers on April 30, 1938 and were transferred without change to 
the Coast Guard in 1977 (42 FR 5178). The particular section, which is 
now 33 CFR 162.65(b)(3), has never been amended. This regulation 
predates the Inland Navigation Rules Act of 1980 (33 U.S.C. 2001 et 
seq). There is no evidence in the legislative history of the Inland 
Navigation Rules Act that the drafters addressed potential conflicts 
with part 162. This is understandable, because the Inland Waterways 
Navigation Regulations in part 162 address local navigation issues 
unrelated to the Inland Navigation Rules.
Discussion
    The Coast Guard proposes to remove 33 CFR 162.65(b)(3)(iv) because 
it contradicts statutory provisions in the Inland Navigation Rules Act. 
While generally the regulations in part 162 provide restrictions for a 
specific body of water, the regulations in Sec. 162.65 apply broadly on 
all navigable waters of the United States between the Chesapeake Bay 
and St. Marks, Florida, on the Gulf of Mexico. Section 162.65(b)(3)(iv) 
provides that a vessel being overtaken by another shall slacken speed 
sufficiently to permit the passage to be effected with safety to both 
vessels. This regulation directly conflicts with Inland Navigation Rule 
13 which places the responsibility for keeping clear on the overtaking 
vessel and Inland Rule 17 which requires the overtaken vessel to 
maintain course and speed.
    Because this regulation is contradictory to the statutory 
provisions of the Inland Navigation Rules, and is applicable to a wide 
range of navigable waters it should be removed. The Coast Guard does 
not believe that this particular regulation is widely used or even 
generally known to the average mariner. In contrast, the Inland 
Navigation Rules are widely available, specifically tested as part of 
the licensing of mariners, and required to be carried on all vessels 12 
meters or more in length.
    Removal of this regulation will have little or no practical effect 
on the mariner. As a practical matter, vessels being overtaken in 
narrow channels sometimes slacken speed or maneuver to assist the 
overtaking vessel, thereby appearing to violate Inland Navigation Rule 
17 which requires the overtaken vessel to maintain course and speed. 
However, where specifically agreed to by VHF radio or other means, the 
overtaken vessel may slacken speed or maneuver to assist in the passage 
consistent with Inland Rule 2 (Good Seamanship). Thus the Inland 
Navigation Rules provide both flexibility and consistency that the 
mariner can rely on. First, if a vessel agrees to be overtaken by 
whistle signal or other means, that vessel will maintain course and 
speed. Second, if some action by the overtaken vessel, such as slowing 
or maneuvering to the outer edge of the channel, is specifically agreed 
to, then the overtaken vessel does not violate the Navigation Rules by 
maneuvering as agreed.

Regulatory Evaluation

    This proposal is not a significant regulatory action under 
Executive Order 12866 and not significant under the ``Department of 
Transportation Regulatory Policies and Procedures'' (44 FR 11040, 
February 26, 1979). The Coast Guard expects the economic impact of this 
proposal to be so minimal that a Full Regulatory Assessment is 
unnecessary. Since this rulemaking basically corrects inconsistencies 
and places no new requirements on the maritime community further 
Regulatory Evaluation was deemed unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this proposal will have a significant 
economic impact on a substantial number of small entities. ``Small 
entities'' include independently owned and operated businesses that are 
not dominant in their field and that otherwise qualify as ``small 
business concerns'' under section 3 of the Small Business Act (15 
U.S.C. 632).
    Because it expects the impact of this proposal to be minimal, the 
Coast Guard certifies under 5 U.S.C. 605(b) that this proposal, if 
adopted, will not have a significant economic impact on a substantial 
number of small entities.

Collection of Information

    This proposal contains no collection of information requirements 
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Federalism

    The Coast Guard has analyzed this proposal under the principles and 
criteria contained in Executive Order 12612 and has determined that 
this rulemaking does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment. Under Federal law, 
authority to issue regulations to amend the Inland Waterways Navigation 
Regulations and the Vessel Bridge-to-Bridge Radiotelephone Regulations 
is vested in the Secretary of Transportation and delegated to the Coast 
Guard. Therefore, if this rule becomes final, the Coast Guard intends 
it to preempt State action addressing this subject matter.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that, under section 2.B.2 of Commandant Instruction 
M16475.1B, this rulemaking is categorically excluded from further 
environmental documentation as this administrative action clearly has 
no environmental effect. A Categorical Exclusion Determination is 
available in the docket for inspection or copying where indicated under 
ADDRESSES.

List of Subjects

33 CFR Part 26

    Communications Equipment, Navigation (water), Marine safety, Radio, 
Telephone, Vessels.

33 CFR Part 162

    Navigation (water), Waterways.

    For the reasons set out in the preamble, the Coast Guard proposes 
to amend 33 CFR part 26 as follows:

PART 26--[AMENDED]

    1. The authority citation for part 26 is revised to read as 
follows:

    Authority: 33 U.S.C. 1207; 49 CFR 1.46.

    2. Section 26.05 is revised to read as follows:


Sec. 26.05  Use of Radiotelephone.

    Section 5 of the Act states that the radiotelephone required by 
this Act is for the exclusive use of the master or person in charge of 
the vessel, or the person designated by the master or person in charge 
to pilot or direct the movement of the vessel, who shall maintain a 
listening watch on the designated frequency. Nothing herein shall be 
interpreted as precluding the use of portable radiotelephone equipment 
to satisfy the requirements of this act.

PART 162--[AMENDED]

    1. The authority citation for part 162 continues to read as 
follows:

    Authority: 33 U.S.C. 1231; 49 CFR 1.46.


Sec. 162.65  [Removed]

    2. Section 162.65(b)(3)(iv) is removed.
* * * * *
    Dated: March 8, 1994.
W.J. Ecker,
Rear Admiral, U.S. Coast Guard, Chief, Office of Navigation Safety and 
Waterway Services.
[FR Doc. 94-8375 Filed 4-7-94; 8:45 am]
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